Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-12-10
Oommission of Appeals

Commission of Appeals
William Lewis vs.. Hannah L. Sellick ct
al; appeal from Uvalde. Suit by appel
lee, Joined by her husband. TO recover al
individual one-haIf interest IL three sec
tions Of land and fer partition, it being
admitted that the ownership of the other
half was in appellant, or in the alternative
to establish her homestead right to 200
acres land in section 1875, and to have
her homestead partitiOned and set apart
to her, and also to recover rents.
l. A tenant in common is entitled to
homestead estate in land thus held. 81
Tex 1856. 2. The homestead estate or q
tenant IN common is not confined to an
undivided interest in the eco acres con-
shutting the rural homestead, but ex-
tends to an undivided interest of 200
scrss out of the interest owned. r 81 Tex
633 8. Ole tenant in COM
mon may lawfully 60 upon
any part of the land, establish his
home and erect Improvements thereon,
and when the common lands come to be
divided the co-tenEnt who has enhanced
the value of part of the land by his in
dividual efforts and expenditures is enti-
tied to have allotted 10 him the 20 ton
EQUALS in value his share Of the entire
tract independent OF improvements.
When improvements are erected 81
the lint expense Of the co-tenants, and
one of the co-tenants occupies the i'm
provements by consent Of the others, and
claims his homestead therein, of the land
is afterwards partitioned the occupant is
entitled to his 200 acres homestead estate
Nd ha
tied to half of the value Of the improve
ments erected at the joint expense of
both. The Jury found the cost of the
improvements at the time appellant took
poss ession to be Sl400, and the appellees
interest should have been limited by the
Judgment under the verdict to one-haIf
that amount, 500, and the judgment is
reversed and thus reformed. II not ep-
bearing that appellant moved in the court
below to reform the Judgment, or in
manner called the attention of the court
TO the error indicated, sppellsnt should
pay all costs. Reversed and reformed.
Acker, J.
L & Il. Blum ct al. VS.. J. A. Strong;
appeal from McLennan. Suit by appellee
to recover damages for the wrongful
issuance of an attachment sued out by
sEoDstable of McLenpan county and one
of the parties defendant 10 this suit; upon
stock Of goods belonging to opp lice.
L The jurisCi ;tion Of court must be
determined by the allegations OF the petit
ton, except When it Is averred in the
answer that the allegations are fraudu-
lently made, for the purpose Of comforting
Jurisdiction, and there is issue iJined, and it
q, %baF al IN arF
fraudulentlY made for the purpose of
giving the court Jurisdiction. 2. The
court erred in refusing TO charge the Jury
TO fad for defendant Costley, who levied
the writ. The process was regular on it's
face, and not only justified but required
HIM to make 8 sufficient levy to satisfy
the amount of the attachment and all costs
Of suit. The inventory OF the goods was
only slightly in excess of the debt, and
there is no evidence that he acted im-
properly in seeking the levy or sale. 3
While it is rule of law, as well as of
logic, thai the burden of proof
is on the party no dug the sfirma
tive Of an issue, is it not
believed to be necessary to give it in
charge to the jury in every case. II the
defendant introduces evidence, which,
when taken together with that of the
plaintiff, makes a cause of action in favor
of the latter, the jury will be justified in
returning verdict for the plaintiff The
court did not err in refusing to charge
that the burden was on the plaintiff
In order to defend against actual dam
ages, the very grounds stated in the sffi
davit, must be true, while it is q sufficient
defense TO the claim for exemplary dam
ages that there was reasonable
and probable grounds to believe
the facts stated in the afidsvii
were true. 5. Thst debtor has done :
certain act that would authorize an at
tachment is no sufficient reason for g
creditor to make affidavit of other acts,
not IN fsct true, and thereby cause loss
TO the debtor. 6. 1t was not error to re-
iect testimony to the effect that appellee
had attempted to dispose Of his property
with intent TO defrsud his creditors, wher
the grounds for attachment is set forth in
The affidavit, were that he had disposej
of his property with intent to GefrauC
} his creditors. The Judgment will be re-
versed and dismissed es to E. D. Costley
and affirmed IS to other appellants l.. 6
81. Blum. Maltbie, P.J.
, John T. Lilley VS. Leon and 81. Blum
error from Wise county. The only ques
, tlon involved in this case is whether tn